Sh.Lok Nath & Ors. vs Sh.Ashok Kumar
2014 Latest Caselaw 3395 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CM(M) 360/2012 & C.M.No.5474/2012(for exemption)

%                                                        30th July, 2014

SH.LOK NATH & ORS.                                      ...... Petitioners
                         Through:     Ms.Kamlakshi Singh with
                                      Mr.S.K.Kapoor, Advocates.

                         VERSUS

SH.ASHOK KUMAR                                         ...... Respondent

                         Through:     Mr.Bhupesh Narula, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes.


VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order of the Additional Rent

Control Tribunal dated 17.1.2012. The Additional Rent Control Tribunal by

the impugned judgment has decided two appeals. One appeal was filed by

the landlords and the other appeal was by the tenant both against the

judgment/order of the Additional Rent Controller dated 09.11.2009. The

judgment/order dated 09.11.2009 is a consequential order pursuant to the

main judgment deciding the petition filed by the petitioners/landlords under

Section 14(1)(a) (non-payment of rent) of the Delhi Rent Control Act, 1958

on 01.8.2008.

2. To put in seriatim and chronologically, it is to be noted that the

petitioners herein/landlords filed the eviction petition on the ground of non-

payment of rent under Section 14(1)(a) of the Delhi Rent Control Act, 1958.

This petition was allowed in favour of the landlords by holding that the

respondent/tenant had committed a default in payment of rent for the period

from 01.10.1996 to 03.11.1996 by not paying, tendering or depositing the

rent inspite of service of the legal notice Ex. AW-1/10 dated 12.12.1996. In

law, even if a default is proved in a petition under Section 14(1)(a) of the

Act, an eviction order does not follow because a tenant is entitled to make up

the default of rent by depositing rent pursuant to an order under Section

15(1) of the Delhi Rent Control Act. If it is found that the tenant has

complied with the order passed under Section 15(1) of the Act, benefit of

Section 14(2) of the Act is given and eviction order is not passed.

3. In the present case, the issue which is argued before this Court is that

the respondent/tenant has not complied with the order under Section 15(1) of

the Act because interest amount which was liable to be paid in terms of

Section 26 of the Delhi Rent Control Act, 1958 on the amount of arrears of

rent was not paid by the respondent/tenant as demanded in the legal notice

dated 12.12.1996 Ex. AW-1/10, and therefore, benefit of Section 14(2) of

the Act cannot be given.

4. At this stage, the interim order dated 2.12.1999 which was passed by

the Additional Rent Controller under Section 15(1) of the Act during the

hearing of the main petition under Section 14(1)(a) of Act is required to be

examined. The relevant/operative part of this order reads as under:-

" 3. In reply to para 18(a) (iii) the respondent claims that he has been sending the rent through money order which was refused. The petitioner has alleged that the respondent was in arrears w.e.f. 1st October, 1996. The respondent does not claim to have paid the rent upto any specific month. From the contention of the respondent that he sent the rent through money order which was refused, it is presumed that the rent for period from 1st October, 1996 was sent by the respondent through money order which was allegedly refused by the petitioner. As such the respondent has not paid any rent w.e.f. 1 st October, 1996. Therefore, I am of the prima-facie view that the monthly rent in respect of the premises last paid y the respondent was at the rate of Rs.375/- per month which has not been paid by the respondent w.e.f. 1st October, 1996. Accordingly without prejudice to the respective rights of the parties the respondent is hereby directed to pay to the petitioner or deposit in the court upto date arrears of rent w.e.f. 1st October, 1996 at the rate of Rs.375/- p.m within a period of 30 days from today and to continue to pay to the petitioner or deposit in the court monthly rent for each month by 15th of each succeeding month till further orders. Case is adjourned for petitioner's evidence on 24.2.2000." (emphasis added)

5. It is clear from a reading of the operative portion of this order dated

2.12.1999 that in this order passed under Section 15(1) of the Act, there is no

direction, although wrongly, for the respondent/tenant to deposit interest

payable on account of non-payment of rent in time. By this order, only

arrears of rent were directed to be deposited and also the future rent month

by month during the pendency of the petition before the Additional Rent

Controller and not interest payable as per Section 26 of the Act. The

petitioners/landlords did not move for any variation in this order passed on

02.12.1999 by complaining that the order should also include payment of

interest on the defaulted rent and be modified accordingly.

6. The main eviction petition was disposed of vide the judgment dated

01.8.2008, and which judgment has become final because this judgment has

not been challenged by any of the parties. The relevant and operative paras

of this judgment are paras 10 and 11, and which read as under:-

" 10. As far as the tender of rent within two months of the service of the notice is concerned, though the respondent through his brother Anil sent the money order within 60 days, but as already discussed, the same were incomplete as does not include the interest on the delayed payment and also the same was not deposited in the court u/s 27 of DRC Act after its being refused and I am of the considered opinion that a case of first default is made out in facts and circumstances mentioned herein above.

11. Order u/s 15 (1) DRC Act have already been passed on 02.12.99 directing the respondent to pay or deposit the rent w.e.f. 01.10.1996 @ Rs.375/- per month. Let the compliance report be called from Nazir of orders u/s 15(1) DRC Act to see whether benefit of Section 14 (2) DRC Act is to be given to respondent or not vide misc. file. Present file be consigned to Record Room."

7. A reading of the aforesaid paras shows that the main petition under

Section 14(1)(a) of the Act was held to have been correctly filed and it was

held that there was a default by the respondent/tenant of not complying with

the legal notice dated 12.12.1996 Ex. AW-1/10 for payment of arrears of

rent and interest, and therefore, it was directed simultaneously that for giving

the benefit of Section 14(2) of the Act, it will have to be examined whether

the respondent/tenant has complied with the order passed under Section

15(1) of the Act.

8. It is relevant to note that the petitioners/landlords did not apply even

at this stage of passing of the judgment dated 1.8.2008 for the variation of

the earlier interim order passed under Section 15(1) dated 02.12.1999 that

the respondent/tenant must be directed to pay interest in addition to the

arrears of rent. Petitioners also did not even ask for review of the judgment

dated 01.8.2008 and they also did not file any appeal against the judgment

dated 01.8.2008 on the ground that the said judgment wrongly records

requirement of compliance of the order only under Section 15(1) passed on

02.12.1999 and that the order under Section 15(1) requires to be

amended/modified/added by directing deposit of interest on the defaulted

amount of rent. Therefore, neither at the stage of passing of the order under

Section 15(1) on 02.12.1999 nor at the time of final judgment dated

01.8.2008, the petitioners/landlords did seek a direction to be passed under

Section 15(1) of the Act or in the final judgment dated 01.8.2008 that the

respondent/tenant should now be asked to deposit the interest on the

defaulted rent.

9. Pursuant to the main judgment passed on 01.8.2008, subsequent

proceedings took place as to the compliance of the order passed on

2.12.1999 under Section 15(1) of the Act, and which order was only towards

the arrears of rent and not interest. It was found that the said order dated

02.12.1999 was duly complied with except with respect to two future month

to month payments, and on which aspect there were two small defaults of

delay of one or two days, and which delay/s were condoned by the

consequential order dated 09.11.2009, passed pursuant to para 11 of the

judgment dated 01.8.2008. This aspect of condonation of delay of one/or

two days with respect to two defaults is not the subject matter of challenge

before this Court, and as already stated above, challenge which is raised is

that the respondent/tenant cannot take benefit of Section 14(2) because the

respondent/tenant has not deposited the interest on the defaulted rent as

asked for in the legal notice Ex. AW-1/10.

10. During the course of hearing, learned counsel for the

respondent/tenant has drawn the attention of this Court to an application

filed by the present petitioners before the Additional Rent Controller on

14.10.2008 i.e before passing of the consequential judgment/order dated

09.11.2009, and in which application the petitioners/landlords has raised no

grievance of non-compliance of the order dated 01.12.1999 under Section

15(1) on the ground that the respondent/tenant cannot be given a benefit of

Section 14(2), inasmuch as the interest claimed in the legal notice Ex. AW-

1/10 has not been paid/deposited. This application dated 14.10.2008 refers

to various defaults with respect to pendente lite deposit, but, there is no

mention in this application with respect to non-compliance of the order under

Section 15(1) on account of non-payment of interest as demanded in the legal

notice Ex. AW-1/10. Therefore, even the petitioners/landlords had understood

the order under Section 15(1) dated 02.12.1999 only with respect to arrears of

rent and not with respect to interest which became due on account of default

in payment of rent as per Section 26 of the Delhi Rent Control Act and

which requires payment of interest @ 15% per annum. Though counsel for

the petitioner argues that petitioner did argue the aspect before the

Additional Rent Controller that eviction order be passed because of non-

deposit of interest component, it is however noted that actually no grievance

qua interest was raised being the reason for non-compliance of the order

under Section 15(1) before the Additional Rent Controller, because if this

argument had been urged then the ARC would have noted and considered

this aspect, however, there is no such discussion in the order dated

9.11.2009. If the petitioner had raised such an argument and the ARC has

not noted it then in law the petitioner had to approach the ARC itself

pointing out this aspect and seek review. I may at this stage refer to the ratio

of the judgment in the case of State of Maharashtra vs. Ramdas Shrinivas

Nayak & Anr., AIR 1982 SC 1249 wherein the Supreme Court has observed

that if a factual aspect is wrongly recorded in an order/judgment then the

only way in which the error can be corrected is by moving the court which

passed the order/judgment immediately after passing of the order/judgment

when the matter is still fresh in the mind of the court and if this is not done

then it is not permissible before an appellate court to argue that the

order/judgment of the court below is factually wrong. Therefore, the aspect

that there is a default on account of non-deposit of interest payable on

delayed payment of rent was not argued before the Additional Rent

Controller, and this aspect now cannot be urged for the first time in this

petition under Article 227 (effectively almost a second appeal) because to

permit the same grave prejudice will be caused to the respondent.

11. A collation of the facts as stated above shows that undoubtedly there

is a default in payment of interest by the respondent/tenant as demanded in

the legal notice Ex. AW-1/10, however, simultaneously it is also clear that

the order under Section 15(1) which is required to be complied with for

getting the benefit of Section 14(2) of the Act also did not order for payment

of interest on the delayed payment of rent and even the petitioners/landlords

never did apply for variation of the order dated 02.12.1999 under Section

15(1) or for variation of the final judgment dated 01.8.2008, in which the

interim order dated 02.12.1999 merged that the interest component be

directed to be paid/deposited by the respondent. Really, therefore, the

present case is to be considered on the principle that an act of the court

should not harm the litigant i.e since under Section 14(2) an eviction order

should not be passed against the tenant with respect to default in payment of

arrears of rent if the tenant complied with the order passed under Section

15(1), then, a tenant cannot be allowed to be caused prejudice because of an

act of the court by passing the order of eviction although the order passed

under Section 15(1) did not direct payment of interest, and therefore, the

respondent/tenant did not pay/deposit interest component.

12. Also, I disagree with the arguments urged on behalf of the

petitioners/landlords that the petitioners/landlords should also not be

prejudiced, inasmuch as the petitioners themselves never applied either for

variation of the interim order under Section 15(1) dated 02.12.1999 or the

final judgment dated 01.8.2008 by praying that the respondent/tenant in

addition to the direction of deposit of arrears of rent should also be asked to

deposit interest for delayed payment of rent.

13. In view of the above, the present is a fit case that in exercise of my

inherent powers it is directed that the interest amount on the arrears of rent

from 01.10.1996 to 30.11.1996 be deposited by the respondent/tenant in the

Court of Rent Control Tribunal within six weeks or be deposited within six

weeks in the bank account of the petitioner or anyone of them, particulars of

which bank account the petitioners through their counsel will give to the

respondent through his counsel within a period of two weeks from today.

The respondent/tenant can also send within six weeks the amount of interest

payable by a money order also, if the respondent /tenant so desires.

14. In view of the above, I hold that no eviction order can be passed in

favour of the petitioners/landlords and against the respondent/tenant on

account of the respondent/tenant allegedly not having complied with the

order under Section 15(1) of the Delhi Rent Control Act inasmuch as the fact

of the matter is that the interest amount was not paid on the arrears of rent,

because in fact, there was no such order under Section 15(1) of the Act for

payment of interest by the court, and the petitioners/landlords also never

asked for variation of the order under Section 15(1) of the Act to direct the

respondent/tenant to pay interest, read with the principle that an act of the

court should not harm any litigant.

15. Dismissed. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J.

JULY 30, 2014 KA